Lecture 5 - Tort

Question 1

Tort =

Answer 1

Civil action not based upon law of contract. Based upon ideas of fault and compensation. Used when actions of one party result in need to sue, but no contract signed/ entered into. Someone else must have been at fault.

Question 2

Tort law allows society to:

Answer 2

Allocate risk (to party best able to cope with risk)

Question 3

3 things must be proved before claim can be established in tort:

Answer 3

• Claimant must prove defendant owed claimant duty of care
• Must prove duty of care was breached
• Must prove that lack of duty of care caused the claimant’s injuries

Question 4

If you are legally negligent…

Answer 4

Personally liable to pay damages/ compensation for loss/ injury they suffer

Question 5

Claimant must satisfy 3 criteria:

Answer 5

• Damages must be foreseeable
• Must be sufficiently proximate relationship between parties
• Must be ‘fair, just and reasonable’ for court to impose duty of care

Question 6

Positive actions

Answer 6

Liability does exist. If person chooses to intervene, only liable if the intervention made claimant’s position worse than if not taken place

Question 7

Failure to prevent harm from arising..

Answer 7

Liability does not exist unless special relationship between defendant and claimant, or when defendant has failed to take reasonable steps to abate danger created by third party

Question 8

Defendants immune from suit in certain situations include

Answer 8

Local authorities, emergency services and lawyers in some situations

Question 9

Breach of duty of care =

Answer 9

Defendant falls below acceptable standard of care

Question 10

Factors which influence standard of care (5)

Answer 10

• Foreseeability of harm
• Magnitude of risk
• Burden of taking precautions
• Utility of defendant’s conduct (eg social utility)
• Breach of common practice

Question 11

If: B > P + L

Answer 11

No liability

Question 12

If: B < P + L

Answer 12

Liability

Question 13

Children subject to

Answer 13

Standard of reasonable child at the same age

Question 14

Defendants acting in an emergency are held to

Answer 14

Standard of emergency

Question 15

Res ipsa loquitor

Answer 15

‘The thing speaks for itself’ > must have been negligence as result could not have occured without negligence, but difficult to prove specific facts

Question 16

Causation

Answer 16

Decided by “But for” test in cases of concurrent causes

Question 17

Indeterminate causes

Answer 17

Where two or more defendants may potentially be at fault for single cause of harm, but impossible to determine which one did it > both held jointly liable and had to pay damages

Question 18

Cumulative causes

Answer 18

Two causes combine to cause one harm or eg in car crash, one car hits, then another. Hold both defendants liable for whole of damage

Question 19

Consecutive causes

Answer 19

One cause follows upon second cause. Key issue for court to determine is whether effect of first act can said to be overtaken/ obliterated by second act

Question 20

Remoteness of damage

Answer 20

Cases where law will deny recovery on basis that loss in question is very unusual result of defendant’s conduct therefore too remote to be claimed

Question 21

3 issues in determining whether damage too remote or not

Answer 21

1) Foreseeability of kind of damage
2) Foreseeability of extent of damage
3) When claimant suffers greater injury than expected because of personal characteristic ‘eggshell skull rule’